Internally Displaced Persons: What Can the UNHCR Do about Them?

(2006) 18 Sri Lanka JIL (No.2) 42/

INTERNALLY DISPLACED PERSONS: WHAT CANTHE UNHCR DO ABOUT THEM?

Thilini Kahandawaarachchi *

INTRODUCTION

The United Nations High Commissioner for Refugees (UNHCR) is mandated to

protect people fleeing their countries from political persecution, mass killings or

conflict and to lead and co-ordinate international action to protect refugees and

resolve refugee problems worldwide. It strives to ensure that everyone can exercise

the right to seek asylum and find safe refuge in another country, with the option to

return home voluntarily, integrate locally or to resettle in a third country. According

to the UNHCR, in more than five decades, it has helped an estimated 50 million

people restart their lives and at present a staff of around 6,540 people in 116

countries continues to help 19.2 million persons.'

There is an estimated 17 million refugees in the world, while there is also a

staggering 25 million people who are displaced within their own countries.2 The

distinction between refugees and Internally Displaced Persons (IDPs) is that

refugees are those displaced persons who cross a national border and seek asylum

or refugee status while those who stay within the national borders of the country

are regarded IDPs. While the involuntary nature of displacement is common to

both refugees and IDPs, the movement within the national boarders sets the IDPs

* B.A. LLB (Hons), Open University, Sri Lanka.

'UNHCR- Basic facts' at <http://www.unhcr.org/cgi-bin/texis/vtx/basics> visited on28.04.2006.Alex De Waal, Book review of Protecting the disposed: a challenge for the international

community by Francis M. Deng, International Affairs (Royal Institute for InternationalAffairs 1944) (1994) 70(2),311.

Vol. 18, No.2, Sri Lanka Journal of International Law (2006)

apart from the refugees. In the early 1990s when the IDP issue came into the

forefront in international circles there was no definition to the 'IDP.'But having a

definition makes it easier to understand who are the people concerned and to

make the necessary laws? Thus, according to the guiding principles on internal

displacement, "Internally Displaced Persons are persons or groups of persons

who have been forced or obliged to flee or leave their homes or places of habitual

residence, in particular as a result of or in order to avoid the effects of armed

conflict, situations of generalised violence, violations of human rights or natural or

human-made disasters, and who have not crossed an internationally recognised

state border."

The unfortunate situation is that there is not a single convention on the rights of

IDPs; not a single article in the numerous Human Rights instruments explicitly

mentions IDPs. The UN has no specific agency devoted to protecting and assisting

the 25 million IDPs all over the world. While more and more people are being

uprooted as a result of internal conflicts, and even as a result of natural disasters,4

international public atten-tion remains much more focused on refugees. Current

trends indicate that the number of refugees and asylum seekers is declin-ing while

that of IDPs is growing. While refugees receive protection from the UNHCR,

those who remain within the borders of their own country have no estab-lished

international protection and assistance regime to turn to. They have to wait until

organisations such as the UNHCR, ICRC and the IOM are able to start operations

within their own country and begin to reach those in need of assistance. Even

then, many IDPs remain unassisted; most of them suffer from diseases, starvation

and malnutrition while violence against them continues.5

Erin Mooney, 'The concept of internal displacement and the case for internally displacedpersons as a category of concern' at <http://www.brookings.edu/views/20051017_em-page.htm> visited on 30.04.2006.

'Internally Displaced Persons: The Role of the United Nations High Commissioner forRefugees' at <http://www.icva.ch/cgi-bin/browse.pl?doc-doc00000119> visited on28.04.2006.

Walter Kilin, 'Internally Displaced Persons - The protection gap', at <http://www. global futureonline. org/PolicyAdvocacy/G lbiFutr. nsf/issues/5036978COC66026D88256F7F003D27BA/$File/GF04Q4 web.pd?OpenElement> visitedon 30.04.2006.

422

IDPs & UNHCR

One of the main reasons for the relatively lack of involvement of the international

com-munity regarding the IDPs is the fact that they remain under the sovereignty

of their gov-ernments. Until the early 1990s the issue of intemal'displacement

was politically off-limits as governments insisted on their sovereign right to decide

how to deal with the displaced. But in the past dozen years or so there has been

a major change of attitude as a result of the increasing acceptance that sovereignty

entails the responsibility of governments to respect and protect the rights of those

living on their territory. Thus, international concern for the IDPs has gained new

urgency in recent times. There is also agreement that the international community

has to play a role when governments are unwilling or unable to help IDPs.6 However,

call for assistance to IDPs from the international community is not new; in late

1940s Greece suggested that international help also be extended to those displaced

internally by civil war. At that point of time the international aid that was talked

about was humanitarian assistance and not protection of the IDPs.7 But today

international assistance has to go a step beyond mere humanitarian assistance

and provide protection to IDPs as well.

Though the primary responsibility of the UNHCR is towards the refugees, due to

its experience which has been gathered by working with displaced people for

decades, it has been involved with IDPs and has taken an active role in over forty

operations all over the world since 1970s. Post 1990s, UNHCR has had an

increasingly significant involvement with IDPs.8 It has also come up with a set of

Guiding Principles on Internally Displaced Persons.

In this paper, the writer examines the role played by the UNHCR with regard to

IDPs. The first part of the paper deals with the enormity of the IDP crisis and

why the international community has been reluctant to involve themselves with

the IDP issue. Then the writer moves on to discuss the rationale behind the

UNHCR's involvement, its scope and responsibilities as well as the nature of

6 Id.7 Guy S. Goodwin-Gill, The Refugee in International Law (2nd Edn., Oxford: Clarendon

Press, 1996) 264.'UNHCR's Operational Experience with Internally Displaced Persons at <http://

www.unhcr.org/cgi-bin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=3b84f64c4> visited on 30.04.2006.


activities under the UNHCR mandate. The writer also discusses the importance

of providing protection to the IDPs as part of UNHCR activities. The collaborative

approach which is believed to be the best manner to handle the IDP problem and

also the Guiding Principles on the IDPs have been looked into in the later parts of

this paper. In analysing the role played by the UNHCR in relation to IDPs, the

writer has adopted an institutional perspective.

THE ENORMITY OF THE IDP CRISIS

Internal displacement is truly a global crisis affecting millions of people within 52

different countries among which Africa is the largest hit.9 But the problem is even

greater than what statistical evidence indicates. These people are uprooted and

forced to flee from their homes and areas of normal residence as a result of

armed conflicts, communal violence, gross violations of Human Rights, and other

manmade or natural disasters. As a result of displacement, people are deprived of

the basic necessities of life such as shelter, food, medicine, education, or

employment opportunities. The displaced people are discriminated against and

they often find their family and communal ties shattered. What is worst is that

they are often trapped within the area of the very conflict which they seek to flee,

thus they are compelled to move again and again. This denies them the chance to

start life all over again after they are displaced for the very first time, and instead,

being displaced once leads to a chain of instances of displacement over and over

again. Among the displaced are also categories which are more vulnerable such

as children, women, elders and the physically or mentally challenged. 0

In reality the circumstances of the IDPs is practically little different from that of

refugees. The declaration on International Law principles on IDPs which was

adopted by the International Law Association in July 2000, deals with the root

causes of the IDPs and their status. It has also broadened the concerns of

9 Francis M. Deng, "The Global Challenge of Internal Displacement", Journal ofLaw &Policy, 5,141; Gerald Martone, 'The IDP Quagmire: Old Wine, New Bottles' at <http://www.interaction.org/library/detail.php?id=4582> visited on 28.04.2006.

10 Id.

IDPs & UNHCR

International Law to encompass all persons who have been uprooted from their

homes whether they have crossed an international boarder or not." According to

Luke T. Lee, there are three important factors that have to be understood about

the refugees and IDPs. Firstly, compared to refugees, there are twice as many

IDPs in the world. Though they are treated different, the cause of their

displacement is the same. Thus, it is not logical or fair to exclude IDPs from the

refugee status merely because they have not crossed an international boarder.

Secondly, compared to the refugees IDPs suffer more. Once the refugees cross

a border and seek asylum or resettle they are safe to a large extent and they are

also protected by the international community and through international treaties

as well as organizations such as the UNHCR. On the other hand the IDPs remain

in the same country, more often than not in the conflict area and many a times

they shift from place to place within the same area. Unlike the refugees, IDPs do

not have any international treaties to protect them and there is very little international

support. Though their governments are supposed to protect them, most of the

time the governments are involved in civil strife and are unable to give them any

protection. Thirdly, the rationale for protecting refugees on the basis of crossing

international boarders disappeared with the cold war. Since the demise of the

Soviet Union as a super power and communism as a dominant ideology, political

persecution of individuals is no longer the reason behind people seeking refugee

status; there are other causes such as ethnic violence, human rights abuses etc.

which have lead to displacement.12

CONCEPTUAL APPROACH TO THE MANDATE

Since the IDP crisis gained importance in the international arena it was viewed as

a politically sensitive issue as it pits the principles of state sovereignty against the

principles of human rights. 3 From an International Law perspective, primary

Luke T. Lee, "London Declaration on international law principles on internally displacedpersons", AJIL (2001) 95 (2),454-458.

12 Id.

'3 Emily Copeland, "Global Refugee Policy: an agenda for the 1990s", IMR (1992) 26 (3),992-999.


responsibility for the protection and assistance to IDPs rest with the territorial

state as a result of sovereignty and the principle of non-intervention. The Guiding

Principles underline this point. 4 The international community was initially reluctant

to intervene in situations of internal displacement. As an "internal problem," it

was seen as something falling within state sovereignty and therefore not the concern

of neighbouring states or of the global community as a whole. However, with the

end of the Cold War and the growth of a more assertive world vision of the

international community's role in ensuring human rights and the feeling that

something must be done prompted action. 5

There are two ways to view the issue of sovereignty. On one hand, it can be

looked at as a barricade put up by the states to prevent the international organizations

from interfering with the internal issues. For example, the Chinese government

insisted that "no one should interfere with the internal affairs of a sovereign state

in the name of humanitarian assistance, nor should humanitarian responses be

used as a pretext to use force against a state."' 6 On the other, sovereignty can

also be given a positive outlook by stating that sovereignty is a concept used by

the states to take care of those people who are within their territory and therefore

taken care of by the state itself. Normally, states are supposed to take care of

those people, but in most of the cases, where the state itself is in a crisis situation

it is unable to give adequate protection and take responsibility for the IDPs. In

most of the cases internal displacement is a result of civil conflict where the

authority of the state government itself is in dispute; in such a case it is doubtful as

to what extent the state can take responsibility of the I!DPs. "7 There are instances

when countries call for international assistance, especially when there are instances

of natural disaster.'8 In such cases the international community has to step in to

11 'Addressing Internal Displacement: A framework for national responsibility' at <http://www.brookings.edu/fp/projects/idp/20050401 nrframeworLpdf> visited on 30.04.2006.

'1 Francis Deng , "International response to Internal Displacement: a revolution in themaking", 11 NO. 3 Hum. Rts. Brief24, 24.

16 Roberta Cohen, 'Masses in Flight: People under assault in their own countries' at

<http://www.brook.edu/fp/projects/idp/articles/stl-address.cohen.pdf> visited on30.04.2006.

'7 Supra note 7.

" Supranote 13.

IDPs & UNHCR

take care of the IDPs, ignoring the fact that it is rightfully a matter of state

sovereignty. '9

The UNHCR has increasingly extended its assistance to the IDPs despite time

and again reiterating the fact that it is not part of their mandate. UNHCR has

taken a number of steps to address the situation both on the normative side and

the institutional side. Due to the sensitive nature of the issue relating to sovereignty,

in 1992, the Commission on Human Rights decided to appoint a Representative of

the Secretary-General rather than the Rapporteur or Working Group mechanism

normally created for such thematic issues °.20 LTNHCR has adopted the Guiding

Principles on Internal Displacement and followed a collaborative approach with

the Emergency Relief Coordinator as the focal point on the issue at headquarters

level. 21 Thus, it can be seen that irrespective of the views that IDPs should be a

national concern and interfering with IDPs mean interfering with sovereignty,

UNHCR has been active in taking measures for providing assistance to IDPs.

Moreover, there has been a steady increase in the involvement of UNHCR as

well as many other organisations in relief and humanitarian activities aimed at

IDPs.

RATIONALE FOR THE INVOLVEMENT OF UNHCR

UNHCR has an interest in the protection and welfare of persons who have been

displaced by persecution, situations of general violence, conflict or massive

violations of human rights; in other words, all those, who, had they crossed an

international frontier, would have had a claim to international protection. This

interest arises from the similarity between such IDPs and refugees in terms of

the causes and consequences of their displacement and their humanitarian needs.

Like refugees, many IDPs have been forced to leave their homes because of fear

of persecution, war and violence. Like refugees, they are in need of protection

and assistance, as well as solutions to their plight22 and regional organizations do

19 Supra note 9.

20 Id.

21 Supra note 4.


not have the necessary expertise or the means to deal with the problems of IDPs,

and political rivalry may also limit effectiveness of the measures taken to protect

IDPs. Often there is reluctance among many organisations as well as the

international community to interfere in what is seen as internal matters of a state. 3

Past experience indicate that international assistance for IDPs has been done on

an ad hoc basis. At times the UNHCR has extended its assistance to IDPs at the

request of the UN General Assembly.24 But, international action in this area has

been hampered by the fact that there is no single agency assigned the primary -"

responsibility for protecting IDPs. Unlike refugees, who are given special protection

under International Law by the 1951 UN Convention relating to the Status of

Refugees, rights of IDPs are not enshrined in a single treaty. There is no parallel

body to the UNHCR empowered to intervene on their behalf.25 However, while

existing law covers many relevant aspects regarding the situation of IDPs, there

are significant gaps and grey areas where the law fails to provide sufficient

protection.26

Currently, UNHCR is assisting some five million IDPs worldwide and it is often

cited as the operational agency most suited to address their needs. In particular,

UNHCR's protection expertise and experience is most significant in operationalising

protection for IDPs.27 Nevertheless, in the past decade, a multitude of humanitarian,

human rights and development organizations have come forward to provide

protection, assistance, and reintegration and development support to IDPs. In

addition to the UNHCR, the ICRC (80% of whose caseload now involves the

22 Id.

23 Inge Brinkman, Book review ofMasses in flight: the global crisis of internal displacement

by Roberta Cohen & Francis M. Deng, ASR (1999) 42 (3), 182.24 Supra note 13.

25 'Failing the Internally Displaced? Analyzing the International Response', at <http://

www.refugee-rights.org/Newsletters/LawandPolicy/V2N1 FailinglDPs.htm> visited on

30.04.2006.26 'IRIN Web Special on Internal Displacement' at http://www.irinnews.org/webspecials/

idp/bkarticle I.asp visited on 30.04.2006.

27 'A Discussion Paper on Future Options for an Institutional Response to Internally

Displaced Persons' at <http://www.interaction.org/library/detail.php?id=4582> visitedon 28.04.2006.

IDPs & UNHCR

IDPs), the WFP (which provided food to 19 million IDPs in 1999), UNICEF, the

IOM, the WHO, the OHCHR, and a multitude of NGOs are also involved with

IDPs. The IOM constitution mandates the provision of migration services to the

displaced, and internal displacement is approached largely as an aspect of internal

migration. The ICRC has a clear legal interest, deriving from the fact that most

IDPs move as a consequence of armed conflict, and its mandate is to ensure the

application of International Humanitarian Law." Their role is intrusive: they are

on the ground, directly helping people in their own countries. They often encounter

interference in gaining access and sometimes their field staff is endangered. 9

However, the response of the international community and most of the organisations

has been to provide humanitarian assistance, without paying much attention to the

issue of protection. It is true that internal displacement is indeed a humanitarian

issue but attention has also to be paid to the issue of protection which is of utmost

importance.30

Taking note of the assistance granted to the IDPs by various other organizations,

the UNHCR has reviewed and refined its policy and role with the IDPs. A

fundamental assumption of the policy is that humanitarian organisations must work

together to address the needs of the IDPs, and that a better understanding of

what individual agencies are able and willing to do for the IDPs can help to

strengthen collaboration. By clarifying its own role and responsibilities on behalf

of the IDPs, UNHCR hopes to make a positive contribution to the efforts to

improve the response of the UN system.3 ' UNHCR can take the lead, but the

responsibility for IDPs should not be solely on the UNHCR. Other organisations

should also get involved and create a collaboration of organisations. Since various

international institutions have expertise in various areas they can divide the

responsibility according to their expertise and provide humanitarian assistance as

well as protection to the IDPs. The rationale for the involvement of UNHCR

becomes relevant in respect of providing leadership because as of now it is the

organisation which has the best knowledge and experience as well as expertise

with regard to matters of displacement.

28 Supra note 7 at 267.

29 Supra note 16.

30 Supra note 9; supra note 15.

3, Supranote4.


THE RESPONSIBILITY OF THE UNHCR

The most important issue in the recent past was to determine on which UN agency

the burden of taking care of the IDPs should fall on.32 The UNHCR, dedicated to

the support and assistance of refugees, has expanded its own activities to include

not only "convention refugees" but many others fleeing war and violence around

the world.33 Since UNHCR is an existing agency with an expertise in forced

displacement, an extension of its responsibility is logical. Existing operational capacity

would have to be strengthened and special efforts would need to be undertaken to

establish clear operating procedures which would avoid situations where the

provision of protection to IDPs inadvertently undermines refugee protection. 14

While UNHCR's Statute makes no reference to IDPs, over a period of several

decades a series of UN General Assembly resolutions have acknowledged

UNHCR's particular humanitarian expertise and encouraged its involvement in

situations of internal displacement. UN General Assembly resolution 48/11611

(1993) set out important criteria to guide UNHCR's decision on when to intervene

on behalf of IDPs. These resolutions, together with article 9 of the UNHCR

Statute, 36 provide the legal basis for UNHCR's interest in and action for IDPs.37

However, when providing protection to the IDPs, UNHCR has to make sure that

its activities do not undermine the protection of the refugees. UJNHCR keeps on

reiterating that the protection of the IDPs cannot be at the expense of its basic

commitment to asylum. This means that the UNHCR has to be mindful when

32 Gerald Martone, 'The IDP Quagmire: Old Wine, New Bottles' at <http://

www.interaction.org/library/detail.php?id=4582> visited on 28.04.2006.

33 Supra note 15.

34 Supra note 27.

31 'General Assembly resolution 48/116 of 20 December 1993' at <http://www.unhchr.ch/huridocda/huridoca.nsf/6d 1232953255 1 7b2c 125699 10034dc4c/5eba6 1 00a08f252d802567 1 c00402058?OpenDocument> visited on 10.05.2006.

36 Article 9 of the UNHCR statute reads as "The High Commissioner shall engage in such

additional activities, including repatriation and resettlemeni, as the General Assemblymay determine, within the limits of the resources placed at his disposal." See, 'Statuteof the Office of the United Nations High Commissioner for Refugees, GA. res. 428 (V),annex, 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1775 (1950)' at <http://www 1 .umn.edu/humanrts/instree/v3 sunhcr.htm> visited on 10. 05.2006.

3 Supra note 4.

430-

IDPs & UNHCR

there are conflicts which arise between protecting IDPs and defending those

who seek asylum abroad.38 In as early as 1972 Eleanor Roosevelt of the USA

stressed that the responsibility of the UN should be to provide for a specific category

of refugees, viz, those who require legal protection. Displaced people who were

within their countries and who still enjoyed the protection of their countries did not

come within the scope of the discussion, though they might be in great need for

material assistance.39

As mentioned earlier, the difference between refugees and IDPs is on territorial

sovereignty and integrity, therefore UNHCR will not be in a position to balance

between protection and assistance to refugees and the same to IDPs.40 In order

to take on a major role in IDP pro-tection, UNHCR will need to define the scope

of its activities.4' A comprehensive agreement which was reached in 2005 will

reinforce and make more explicit the role of the international community as well

as the specialized agencies in assisting the IDPs. It is hoped to establish a central

multimillion dollar fund and increase donor contributions to UNHCR.42

Thus, a huge responsibility lies on the UNHCR to play a lead role in taking

responsibility for the IDPs eventhough its mandate does not specifically mention

38 Roberta Cohen, 'UNHCR: Expanding its role with IDPs' at <http://www.brook.edu/

views/articles/20050923_rc.htm> visited on 30.04.2006.

9 But according to Walter Kilin, the Representative of the UN Secretary-General on theHu-man Rights of IDPs, "UNHCR is the organisation with the most experience andcapacity to protect and assist persons displaced by armed conflict who are in camps orto organise IDP returns... it is difficult to understand why there should not be at leasta presumption that the UNHCR should assume responsibility in such situations."Supra note 7; 'Interview' at <www.ftnreview.org/FMRpdfs/FMR23/FMR2301 .pdf>visited on 30.04.2006; Anisa Niaz, Publication Review of International protection ofInternally Displaced Persons by Catherine Phuong, E.H.R.L.R. 2005, 3,333-334.

40 'NGO Views on the response to IDPs' at <http://www.icva.ch/cgi-bin/

browse.pl?doc=doc00000244> visited on 30.04.2006.

4' Supra note 38.

42 'Internally Displaced Persons: Questions and Answers' at < http://72.14.221.104/

search?q=cache:3ekZb3 73sWAJ:www.unhcr.org/cgi-bin/texis/vtx/basics/opendoc.pdf/o3Ftbl%3DBASICS%26id%3D405ef~c64+Intemally+ Displaced+Persons:+Questions+and+Answers,+UNHCR,+2005&hl=en&gl=in&ct=-clnk&cd = 1>visited on 10.05.2006.


them. It is only practical for the UNHCR to take leadership in the collaborative

approach relating to IDPs as it is one of the main international organisations which

has the necessary expertise as well as the resources to deal with IDPs.

SCOPE AND NATURE OF THE ACTIVITIES UNDER THE MANDATE

UNHCR's relief and rehabilitation programmes for refugees and returnees have

included those 'displaced within the country' since at least 1972, when ECOSOC

and the General Assembly endorsed operations in the Sudan. The same year the

General assembly kept the mandate door open by asking the High Commissioner

to continue to participate, at the Secretary General's request, in 'those humanitarian

endeavours in the UN for which his office has particular expertise and

experience.'43 In the period of 1988-91, the General Assembly, under pressure

from major donors, began to emphasize the necessity for better coordination of

relief programmes for the IDPs, a task which was initially entrusted to UNDP

Resident Representatives. In the early 1990s UNHCR phased out its operations

in Northern Iraq, continued to be deeply involved in former Yugoslavia, and was

becoming increasingly engaged in conflict situations featuring internal and external

displacement."

UNHCR does not have a general competence for IDPs, the guidelines otherwise

take their lead from paragraph 14 of the UN General Assembly Resolution 47/

105, 4 identifying the criteria for engagement as a specific request from Secretary

General or other competent authority, and the consent of the state concerned.

The Executive Committee, in turn, reaffirmed its support for UNHCR's role with

41 Supra note 7.44 Ibid at 265.

41 Paragraph 14 states: "Welcomes, in this context, efforts by the High Commissioner, onthe basis of specific requests from the Secretary-General or the competent principalorgans of the United Nations and with the consent of the concerned State, to undertakeactivities in favour of internally displaced persons, taking into account thecomplementarities of the mandates and expertise of other relevant organizations." See,'A/R S/47/105' at <http://www.un.org/documents/ga/res/47/a47r l05.htm> visited on10.05.2006.

IDPs & UNHCR

IDPs, while stressing that its involvement should focus on situations that call for

the Office's particular expertise and pay due regard to the complementary

mandates and specific expertise of other relevant organizations as well as the

availability of sufficient resources. The UN General Assembly confirmed this

approach in resolution 48/116 in December 1993.46 UNHCR has increasingly

assumed limited operational responsibilities to cater to the assistance and protection

needs of certain groups of IDPs particularly in the context of promoting and

implementing durable solutions to the refugee problem encompassing both

preventive and remedial aspects and undertaking "special operations," on the basis

of its humanitarian expertise, at the request of the UN Secretary-General or the

General Assembly.47 The Security Council has recognized that situations of internal

displacement can constitute a threat to international peace and security and

specifically requested that such situations where IDPs are under threat of

harassment and harm be brought to its attention. 8

As per the mandate of the Representative of the IDPs the UNHCR has focused

its activities in a number of areas such as raising the level of awareness of the

crisis of internal displacement, developing an appropriate normative framework

for meeting the protection and assistance needs of the IDPs, fostering effective

international and regional institutional arrangements to these same ends, focusing

attention on specific situations through country missions which offer the opportunity

for advocacy and constructive dialogue with all concerned, reinforcing and buildingregional, national and local capacities for effective response, and undertaking

policy and action-oriented research to broaden and deepen its understanding of

the problem in its various dimensions.49

When dealing with the IDPs there is a need for the UNHCR to expand its scope

of protection. One of the criticisms is that the UN agencies directly concerned

46 Supra note 7 at 266.

" Supra note 8.

41 Francis M. Deng, 'The plight of the internally displaced: a challenge to the internationalcommunity' at <http://www.brook.edu/fp/projects/idp/20040408plight.htm> visited on30.04.2006.

49 Id.


with IDPs have not as yet taken on board the displacements which are caused as

a result of development projects etc, but, conceptually, many scholars hold that

displacement which is a product of development is not easily distinguished from

displacement resulting directly from civil wars and the like." The instances of

displacement keep on increasing along with time and development, consequently,

the scope of activities of the UNHCR also has to expand if it is to play an effective

role in protecting the IDPs though it is not an expressed part of its mandate.

PROTECTION ROLE OF THE UNHCR

Most of the UN as well as independent assessments have alleged that protection

is the biggest gap in the international institutional response." In their book, "The

Forsaken People" Roberta Cohen and Francis Deng point out "UN personnel

acted as if the most, and sometimes the only, essential undertaking was the delivery

of relief goods." It is undoubtedly important that the IDPs receive the necessary

humanitarian assistance, but what is even more important is protection.2 What

made the UNHCR the leader in protection was not only its long experience dealing

with displaces populations but also its com-prehensive mandate which

encompass-es both protection and assistance.53

In the case of IDPs, protection involves defending their physical safety and the

broad range of human rights to which they are entitled and which encompass

protection against displacement, during displacement and in return or resettlement.

Non-derogable rights such as the right to life and the prohibition of cruel, inhuman

and degrading treatment are said to be of crucial importance to IDPs with refugee

law providing only a point of comparison to inspire standard setting.54 Tools for

protection can range from moni-toring and reporting to developing protection plans

S0 Supra note 26.

11 Supra note 38.52 Supra note 26.

53 Supra note 38.

11 Anisa Niaz, Publication Review of International protection of Internally DisplacedPersons by Catherine Phuong, E.H.R.L.R. (2005) 3,333-334.

IDPs & UNHCR

for the different agencies on the ground, leading pro-tection working groups to

implement the plans, increasing presence in camps and areas of danger, evacuat-ing

persons at risk, providing emergency shelter,55 advocating with government

officials, promoting national responsibility and helping to develop national capacity,

prod-ding UN senior officials and donor governments to intercede, accompa-nying

returns and helping with rein-tegration and property issues.

UNHCR can play a crucial role by monitoring and accompanying returnees and it

could help enhance security and also help overcome the tensions that arise when

returning refugees receive seeds, tools and reintegration as-sistance from UNHCR.

It is important that the UNHCR plays a visible role until the IDPs are safely

resettled in their home areas. Engag-ing in such activities will require far greater

attention to staff security since operating in countries of origin is a more dangerous

undertaking for international staff than working in host countries.56

There is no consensus on when internal displacement ends or when an IDP should

no longer be considered as such.5 7 Thus there is a need to determine when the

national as well as international responsibility ends with regard to IDPs.58 "For

some, internal displacement ends only upon IDPs' return and the effective reversal

of their displacement. However, because safe return is not always possible, this

can lead to situations where internal displacement holds little prospect of ever

ending, and instead is a plight passed down for generations."59 The cessation

clause in refugee law cannot be applied to cases of IDPs. The human rights of

the IDPs continue even after their special needs as IDPs are satisfied. Therefore

there is no need to formally declare the end of IDP status. The IDPs have the

same rights as any other citizen of that country and when it comes to ending of

forced displacement, they can decide whether to stay, return or move back to a

new area. There are no fixed ways to find out whether there has been full

reintegration. If it is so necessary to determine when internal displacement ends,

11 Supra note 38.

56 Id.

11 Supra note 3.

11 Guillermo Bettocchi & Raquel Freitas, "A UNIHCR perspective", FMR (2003) 13-14.

19 Supra note 3.


the specific criteria for determining the end of internal displacement should include

legal, social and economic reintegration.6'

Though humanitarian assistance is regarded by many to be of great importance,

protection is also crucial for IDPs as even their fundamental rights are being

violated. What is appalling is that these are people who are displaced within their

own countries; therefore, they are also entitled to all the rights that the other

citizens of those states are entitled to. Moreover, when dealing with the protection

issues of IDPs organisations should also look beyond the period when people are

displaced; protection should continue at least until they are safely resettled.

COLLABORATIVE APPROACH

Despite the fact that there are many laws which may be used to help the IDPs,

the existing legal system has failed to provide a solution to the problems of the

IDPs. After visiting Darfur at the end of 2004, Britain's Secretary of State for

International Develop-ment, Hilary Benn, criticised the UN for not adequately

protecting IDPs and called for novel means to take responsibility for the IDPs. 61

There is no political will among the international community to create a-new agency

to deal with the IDPs and the problem of IDPs is too big to be handled by one

single agency. Therefore, there should be a collaboration of various agencies within

the international system. 62 In his first report to the Commission on Human Rights

in 1993, Francis M. Deng presented three options for response: creation of a new

agency for the IDPs, the designation of an existing agency, such as UNHCR to

assume full responsibility, and collaboration among all the existing agencies. To

date, the preferred response has been the "collaborative approach," according to

which existing humanitarian and development agencies and organizations agree

to work collectively to address the needs of the IDPs within their respective

mandates and with regard to their comparative advantages. 63

60 Supra note 58.

61 Supra note 38.

62 Supra note 26.

63 Supra note 48.

IDPs & UNHCR

Many have forcefully advocated in favour of the UNHCR assuming a lead role

and believe that giving the job to UNHCR has the potential to bring predictability

and clarity to an area regularly described as the biggest gap in the international

response to IDPs.' But for reasons of mandate and bureaucracy the best that

can be hoped for are cluster leads. At present, humanitarian interventions are

divided into nine clusters each chaired by relevant U.N. agencies. The lead for

protection, camp coordination and management, and emergency shelter are the

responsibility of UNHCR while emergency telecommunications by OCHA and

early recovery by the UNDP. Health related matters are the concern of the WHO.

The WFP and UNICEF lead measures taken on nutrition and water and sanitation.65

There is a vigil of critical onlookers as the collaborative approach takes shape.

Some have referred to it as the "clutter" approach suggesting that this piecemeal

arrangement diffuses accountability rather than focusing it. There are legitimate

fears that a "coordination bureaucracy" will be invoked to manage this maze.' It

is true that not having one particular organisation to take responsibility for IDPs

would be a major drawback of the collaborative approach. Yet, it is the least bad

option among the options available to take care of the IDPs. Another complaint is

that most of the Humanitarian and Resident Coordinators are poorly informed

about the protection of the IDPs and hold a different view with regard to protection

unlike the staff of the UNHCR.67 It is not always clear as to which agencies in

the UN network have responsibilities towards IDPs and their rights. Consequently,

selectivity has been regarded as a major shortcoming of the UN humanitarian

response system to IDPs.68 So there are pros and cons to all the possible

alternatives.

It is not everyone who is in favour of UNHCR taking a lead role in taking

responsibility for the IDPs. After a visit to Angola where he witnessed international

neglect of IDPs, poor coordination, and the refusal of some organisations to provide

protection the US Ambassador to the UN Richard Holbrooke proposed for

64 Supra note 38.

65 Supra note 32.

66 Id.

67 Supra note 38.

68 Supra note 26.


organisations other than UNHCR to assume the responsibility of lead agency and

rejected the concept of a lead agency and efforts by OCHA to provide more

effective coordination and give more attention to the protection of IDPs. Some

have challenged the entire idea of a lead agency dominating a particular sphere

that clearly involves a number of agencies while it has also been argued that the

High Commissioner for Human Rights, and not the UNHCR, be appointed the

lead agency. There have also been those who have proposed that the UNICEF

should deal with the IDP issue due to its focus on women and children, who

comprise a major chunk of the IDPs. 69 However, it is important to note that local

civil society and national human rights institutions are some of the best engines for

reform within societies but the international community can and should continue

to play an important role in supporting domestic actors in their responsibilities.70

According to the UNHCR, collaborative approach is no small achievement; perhaps

the most positive outcome of this solution is that finally there will be one UN

agency responsible for overseeing the protection of IDPs. This reformulation is

envisioned to provide greater accountability and predictability than the "pick and

choose" IDP assignments of the past.71

The collaborative approach, while not ideal, is the least bad option for predictability

and accountability in caring for the world's largest group of vulnerable people.

While it has worked rather well in some situations, in other cases it appears to

have failed IDPs. Thus, there is significant room for improvement and for

strengthen-ing the cooperation of organisations and agencies involved in the

protec-tion and assistance of IDPs. However, it remains to be seen whether the

collaborative approach will be the most effective response in the long term. 72

69 Id.

70 Supra note 15.

Supra note 32.

72 Supra note 5.

IDPs & UNHCR

THE GUIDING PRINCIPLES

The Guiding Principles on Internal Displacement were finalized in January, 1998.

They represent the first international standard for IDPs.73 During the preparation

of Guiding Principles it was found that existing human rights and humanitarian

law already provided a great many guarantees needed by the IDPs, but that grey

areas and gaps existed in this coverage, that the rules themselves were scattered

among numerous instruments and not easily accessible to those who might most

benefit from them, and that implementation of existing law was inadequate. 74 The

Guiding Principles have taken the important step to explicitly state what some of

the most important rights mean in relation to the particular situation of IDPs.75

Though the UNHCR and the London Declaration on IDPs omit "natural or man

made disasters" as cause of IDPs 76 the Guiding Principles has adopted a broad

definition of lDPs and includes victims of "natural or human made disasters."

Although the Guiding Principles are not a legally binding document like a treaty,77

since their presentation to the UN Commission on Human Rights in 1998, they

have fast acquired a good deal of international standing, 7 moral authority and

acceptance. The Guiding Principles were not made into a treaty because, firstly,

in the area of human rights, treaty making has become very a difficult task to do.

Secondly, even where the text is adopted, there is no guarantee that the treaty

71 Supra note 26.

" Supra note 15.

7 Bjom Pettersson, 'Complementarily between key instruments of international law,International human rights and humanitarian law merged into one operationalinstrument: the UN Guiding Principles on Internal Displacement' at <http://www.irinnews.org/webspecials/idp/pdfs/legal-complimentarity-2002.pdf> visited on30.04.2006.

76 Supra note 11.

71 Walter Klin, "How hard is soft law? The guiding principles on internal displacementand the need for a normative framework", Recent commentaries about the nature andapplication of the guiding principles on the internal displacement, The Brookings-CUNY project on internal displacement (2002) 1-10.

78 Roberta Cohen, 'The Guiding Principles: how do they support IDP response strategies?'

at <http://www.brook.edu/views/speeches/cohenr/20011109.htm> visited on 30.04.2006.


will be a success. The past experience relating to treaties have shown that mere

adoption of a treaty is no guarantee that it will be a success in dealing with the

issue at hand. Thirdly, to draft a treaty which combines humanitarian law and

human right was probably premature. Lastly, there was no need to formulate a

new treaty as most of the existing treaties impliedly covered the rights of the

IDPs. Many of the Guiding Principles, particularly those relating to protection

during displacement, are essentially declaratory of customary law.79 They provide

a useful set of standards against which to measure the protection objectives and

promote dialogue with state and non-state actors of violence. 0

The existing norms of human rights and humanitarian law, as well as Refugee

Law by analogy are relevant to the IDPs"' in situations of tension and disturbances,

disasters in which human rights law is applicable, in situations of non-international

armed conflict governed by the central principles of Humanitarian Law and by

many human rights guarantees and situations of inter-State armed conflict. 2

According to Roberta Cohen the Guiding Principles support the response strategies

of the internally displaced in a number of ways;8afirstly, by providing a framework

for understanding the problem. In many countries, IDPs do not realize that they

have certain rights or that local authorities have obligations toward them. They

are not aware of internal displacement as a phenomenon or realize that there are

people in other countries suffering from the same problem or that there are

international approaches being developed to address the problem. Secondly, the

Guiding Principles are an empowerment tool; when displaced people learn that

certain standards exist bearing on their plight, it helps them in empowering

11 Robert K. Goldman, 'Codification of international rules on internally displaced persons'International Review of the Red Cross, 324,463-466 at <http://www.icrc.org/Web/Eng/siteengO.nsf/iwpListl28iF48E877155985F9AC 1256B66005C44E9> visited on 30.04.2006.

10 Internally Displaced Persons: The Role of the United Nations High Commissioner for

Refugees at < http://www.icva.ch/cgi-bin/browse.pl?doc=docO000119> visited on30.04.2006.

sI Supra note 26.

12 Suprg note 79.

83 Supra note 78.

IDPs & UNHCR

themselves. Thirdly, they are a monitoring tool as they are a valuable benchmark

for measuring conditions in a country. At present, regional and nongovernmental

organizations are monitoring conditions in particular countries in terms of the

Principles. They can also serve as an advocacy tool. This works best when

internally displaced persons are already in conditions of relative safety and can

pursue advocacy vis-A-vis their local and national authorities. Finally, the Guiding

Principles define "protection" for the IDPs and provide a framework for developing

protection strategies. IDPs not only need food, medicine and shelter. They also

require protection of their personal security and human rights. Indeed, IDPs often

point out that protection against assault, rape and forced recruitment is as essential

to them as material assistance. Thus, it is of paramount importance that countries

affected by crises of displacement incorporate into their national laws and policies

the rights of IDPs as contained in the Guiding Principles.84

CONCLUSION

The situation of the IDPs and the refugees may seem similar thus; many would

think that the same legal regime that is applicable to the refugees would be

applicable to IDPs as well. But in reality it is not that simple and despite the fact

that refugees and IDPs share more or less the same cause of displacement, their

fate is very much different from each other. Refugees are protected by a gamut

of international organisations, treaties and other laws, but as things stand today,

not a single document that deal with the rights of the IDPs has been adopted.

Thus, IDPs remain the largest vulnerable group of people in the word without any

protection of their rights..

The problems faced by the IDPs are specific to their situation as they are displaced

within their own country and therefore they do not have another state providing

them protection. IDPs are more vulnerable to human rights violations compared

to other citizens of a country. What has to be noted is that IDPs being citizens of

the country within which they have been displaced, have the same rights as any

84 Supra note 5.


other citizen of that country. Thus there is a need to have a separate regime to

deal with the issues of IDPs and not merely include them in the same category as

refugees.

Eventhough it was believed that the international community should not interfere

in internal matters of a state, at present it is important that the international

community intervenes when Human Rights of individuals are violated, because, in

most of the cases the states are unable or unwilling to take responsibility for the

IDPs. In many cases the state itself is facing a conflict situation which has been

the cause of the IDP crisis.

The protection provided to the IDPs at present is in many cases limited to

humanitarian assistance and it is temporary as there is a need to address the

wider root causes which has caused the displacement in the first place. There is

a need to distinguish between protection and humanitarian assistance as they are

two separate things and sometimes, protection becomes an even more important

issue with regard to IDPs as most of the time their rights are affected and they

need the protection provided by international organisations more than anything

else as in many cases the states are unable to protect their rights. It is of paramount

importance that IDPs are given protection as they are not only fleeing Human

Rights violations but they are more vulnerable compared to other citizens as well.

Some argue that the UN has not taken sufficient measures to deal with the IDP

crisis, but on the other hand it is not wise to burden the UNHCR alone to take

responsibility for IDPs as there is much more that can be done by many other

organisations. Thus, IDPs should be the concern of all the international agencies

as all of them have a role to play with regard to IDPs. It is not only the UNHCR

that has expertise on IDPs, other organisations such as the ICRC and IOM are

also equally experienced with issues relating to IDPs. What is needed is a strong

leadership so that various organisations can function within their sphere to take

responsibility for the IDPs. UNHCR will also need to persuade donors to provide

the resources to enable it to take on a greater protec-tion role though in the past

some donors have resisted this. 5

8 In 2002, for example, the US withdrew its support from a UNHCR programme to protectAngola's IDPs on the grounds that the agency should not use its limited resources onIDPs. Supra note 38.

IDPs & UNHCR

The representative on IDPs has raised awareness with regard to the IDPs and

now it is time to put the words into action and come up with concrete measures

which are for the benefit of the IDPs.86 While a lot of time has been spent on

deciding on ancillary issues, the real problems regarding the IDPs have not been

paid sufficient attention. The continued intervention to take care of the IDPs will

give the international organisations a better understand of the problem and thereby

help to come up with a mechanism which takes care of IDPs one day. However

it is unrealistic to expect the emergence of a single body which takes responsibility

for the IDPs as there are many aspects to internal displacement and it is not wise

to burden one organisation with responsibility for all these aspects.

The Guiding Principles can be regarded as a major step towards the protection of

the IDPs. They can be used as a benchmark for the protection of the IDPs and it

is important that the states which are affected by the IDP problem put the principles

into practice. Many countries have translated them to vernacular languages and

spread awareness of the Guiding Principles which can be considered an important

measure taken by the states. Moreover, internal displacement should be avoided

where possible and the international community should step in to take care of the

IDPs where the states concerned have failed to take responsibility for the IDPs

as internal displacement creates a crisis which calls for a coordinated international

response.87

The international community can do more to close the gaps and ensure a more

predictable and comprehensive system of support for IDPs. While it has been

recognized that all humanitarian actors can have a role to play in enhancing the

protection of IDPs, certain agencies and organizations, such as UNHCR, the

ICRC and the UNICEF, have particular protection related mandates and expertise

that should be fully exploited. Lines of accountability must be strengthened and

leadership by those charged with coordinating the various agencies' response will

be critical. Donor states can also improve the consistency and focus of their

86 Catherine Phuong, The international protection of Internally Displaced Persons (United

Kingdom; Oxford University Press, 2004) 240.87 Supra note 23.


patterns of funding to guard against the neglect of "forgotten emergencies" in

which so many IDPs are trapped.88

Mere undertaking of a mission conveys to the displaced populations that the

international community cares about their plight. However, one should not promise

too much in meetings with the IDPs, it is inevitable that one gives them hope for

international cooperation with their government to address their needs. Yet, unless

these missions in fact result in improved responses to their needs, their hope can -

turn to despair and leave them worse than they were before the mission.8 9

Supranote 15.

9 Supra note 26.

Internally Displaced Persons: What Can the UNHCR Do about Them?

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